Case 2:12-cv-02769-JPM-tmp Document 109 Filed 08/10/18 Page 1 of 4 PageID 1386
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`No. 2:12-cv-02769-JPM-tmp
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`B.E. TECHNOLOGY, LLC
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`Plaintiff,
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`v.
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`FACEBOOK, INC.
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`Defendant.
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`ORDER AFFIRMING CLERK’S ORDER TAXING COSTS
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`The cause is before the Court Plaintiff B.E. Technology, LLC (“B.E.”)’s Motion for
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`Review of the Clerk’s Order Taxing Costs (ECF No. 102), filed May 14, 2018. B.E. requests
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`that the Court vacate the Clerk’s order (ECF No. 101) and find that Plaintiff Facebook, Inc.
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`(“Facebook”) is not a “prevailing party” for the purposes of Federal Rule of Civil Procedure
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`54(d). Facebook has filed a response (ECF No. 103) and B.E. has filed a reply. (ECF No.
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`106.) For the reasons discussed below, the Clerk’s Order Taxing Costs is AFFIRMED.
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`I.
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`Procedural History
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`B.E. filed this action on September 7, 2012. (ECF No. 1.) On December 6, 2013, the
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`Court stayed the action pending disposition of inter partes review of the asserted patents at the
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`United States Patent & Trademark Office. (ECF No. 72.) The asserted claims were
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`invalidated during the inter partes review, and the Court of Appeals for the Federal Circuit
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`affirmed that decision on November 17, 2016. B.E. Technology, LLC, v. Google, Inc., No.
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`2015-1827, 2016 WL 6803057 (Fed. Cir. Nov. 17, 2016). On December 20, 2017, this Court
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`Case 2:12-cv-02769-JPM-tmp Document 109 Filed 08/10/18 Page 2 of 4 PageID 1387
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`dismissed the action as moot because B.E.’s asserted claims had been invalidated. (ECF
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`No. 87.)
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`On January 3, 2018, Facebook filed a motion for a bill of costs pursuant to Rule 54(d).
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`(ECF No. 89.) The Clerk of Court held a hearing on the motion on January 31, 2018. (ECF
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`No. 93.) On May 8, 2018, the Clerk entered an order finding that Facebook was a prevailing
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`party for the purposes of the Rule, and taxing costs in the amount of $4,424.20 against B.E.
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`(ECF No. 101 at 1347.) B.E. timely filed the instant motion for review. (ECF No. 103.)
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`II.
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`Analysis
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`The Court reviews the Clerk’s taxation of costs de novo. BDT Prods., Inc. v. Lexmark
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`Int’l, Inc., 405 F.3d 415, 418 (6th Cir. 2005) (citing Farmer v. Arabian Am. Oil Co., 379 U.S.
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`227, 233 (1964)).
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`The Supreme Court of the United States recently discussed the circumstances in which
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`a defendant can be considered a “prevailing party.” CRST Van Expedited, Inc. v. E.E.O.C.,
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`136 S.Ct. 1646 (2016). The Court held that “a defendant need not obtain a favorable
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`judgment on the merits in order to be a ‘prevailing party.’” Id. at 1651. The Court explained:
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`Common sense undermines the notion that a defendant cannot “prevail” unless
`the relevant disposition is on the merits. Plaintiffs and defendants come to
`court with different objectives. A plaintiff seeks a material alteration in the
`legal relationship between the parties. A defendant seeks to prevent this
`alteration to the extent it is in the plaintiff's favor. The defendant, of course,
`might prefer a judgment vindicating its position regarding the substantive
`merits of the plaintiff's allegations. The defendant has, however, fulfilled its
`primary objective whenever the plaintiff's challenge is rebuffed, irrespective of
`the precise reason for the court's decision. The defendant may prevail even if
`the court's final judgment rejects the plaintiff's claim for a nonmerits reason.
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`Id. See also Raniere v. Microsoft Corp., 887 F.3d 1298, 1306 (Fed. Cir. 2018)(“The relevant
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`inquiry post-CRST, then, is not limited to whether a defendant prevailed on the merits, but
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`also considers whether the district court’s decision . . . effects or rebuffs a plaintiff’s attempt
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`Case 2:12-cv-02769-JPM-tmp Document 109 Filed 08/10/18 Page 3 of 4 PageID 1388
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`to effect a “material alternation in the legal relationship between the parties.”) Although
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`CRST did not involve cost-shifting under Rule 54, it required the Supreme Court to interpret
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`the term “prevailing party.” 136 S.Ct. at 1646. “[I]t has been the Court’s approach to
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`interpret the term [prevailing party] in a consistent manner.” Id. Accordingly, the Supreme
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`Court’s interpretation of “prevailing party” for the purposes of the fee-shifting statute at issue
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`in CRST applies likewise to the term “prevailing party” in Rule 54(d).
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`In the instant case, the Clerk correctly determined that Facebook is a prevailing party.
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`On December 20, 2017, the Court dismissed B.E.’s claims as moot. Although the claims were
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`dismissed as moot, Facebook nonetheless obtained the outcome it sought: rebuffing B.E.’s
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`attempt to alter the parties’ legal relationship. Because Facebook obtained the outcome it
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`sought, the Clerk correctly determined that Facebook is a “prevailing party” as the Supreme
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`Court has interpreted that term. Pursuant to Rule 54(d)(1), Facebook “should be allowed” its
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`costs. The Clerk’s Order Taxing Costs is hereby AFFIRMED.
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`B.E.’s arguments in opposition do not compel a different outcome. B.E. argues that
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`“there can be no ‘prevailing party’ when a case is dismissed as moot.” (ECF No. 102 at
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`1349.) The Supreme Court’s CRST opinion unambiguously states that non-merits
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`dispositions can result one party prevailing; a dismissal for mootness is one such non-merits
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`disposition. B.E. is correct that CRST did not squarely address the issue presented here,
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`because CRST did not involve a dismissal for mootness. The Supreme Court’s reasoning
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`from CRST and its enunciation of the standard for determining a “prevailing party” do,
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`however, extend to the instant case.
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`III. Conclusion
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`B.E. did not raise any other challenges to the Clerk’s Order Taxing Costs. (See ECF
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`No. 102.) Accordingly, the Clerk’s Order is AFFIRMED.
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`SO ORDERED, this 10th day of August, 2018.
`/s/ Jon P. McCalla
` JON P. McCALLA
` UNITED STATES DISTRICT JUDGE
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`Page 4
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